Earle Schwarz and the Abandonment of Rocky Myers

After the Supreme Court denied to hear Robin “Rocky” Myers’ appeal on January 12, 1998, attorney Earle Schwarz agreed to carry on the case in post-conviction proceedings. But during the appeals process, Schwarz quit. He ceased to represent Rocky — without notice to the court or his client.

Because of that, Rocky’s appeal requests defaulted. What that means is stark: due to procedural rules, there was no federal court that heard his claims for relief, including his claims of innocence and intellectual disability. Had his attorney filed the appropriate appeals at the state level, Rocky would have been able to pursue his claims in federal court that his conviction and death sentence, which was ordered by a circuit court judge’s judicial override, were unjust.

Rocky was left to the mercy of fate and chance. Being unable to read, it was only when he asked another inmate for help reading his mail that he learned his right to appeal had expired and that Alabama was moving to set an execution date.

In the 11th Circuit Court of Appeals denial of Rocky’s request, the court described Schwarz’s abandonment:

Attorney Earle Schwarz agreed to represent Myers pro bono in post-conviction proceedings and filed a petition pursuant to Alabama Rule Criminal Procedure in the circuit court. Schwarz did not file the petition until December 21, 1998, eleven months–or, more precisely, 343 days–after the Supreme Court’s denial of certiorari rendered Myers conviction final and began running the one-year statute of limitation for federal habeas. Schwarz also failed to comply with the state post-conviction court’s deadlines. He had sixty days to assemble affidavits in support of Myers’s Atkins claim, but he failed to gather them and instead waited until the deadline to request more time. The court denied that request and then denied the petition without a hearing. Schwarz filed Myers’s appeal to the Alabama Court of Criminal Appeals, but after filing the briefs, he abandoned Myers without telling either Myers or the courts of his abandonment. Although the Criminal Appeals Court denied Myers’s appeal in February 2003, he believed his appeal was pending until February 2004, when the Alabama Attorney General sent Myers a copy of a letter mailed to Schwarz advising that they were seeking an execution date because Myers’s time for filing appeals had expired. Other prisoners then assisted Myers with locating new counsel who filed a federal habeas petition on March 25, 2004.

Myers v. Allen, Docket No. 10-12080 (11th Cir. March 31, 2011).

Below are several documents from the court record showing the official appointment of Schwarz as Rocky’s attorney in post-trial proceedings, and the ultimate reprimand he received for his misrepresentation. Please feel free to download, share and spread the word. There are more documents to come.

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